Show DeSantis the door

Ron DeSantis has lost, and that is good. Also: Alabama wants to try and kill Kenneth Eugene Smith, for a second time, this week.

Florida Gov. Ron DeSantis failed in his presidential campaign, and that is a good thing.

It was not, however, without a cost. His hate-filled authoritarianism was given a national stage for more than a year through his ill-fated presidential campaign — and the harm he has caused in Florida is ongoing.

His cause wasn’t exactly defeated, either, so much as it was adopted by many members of the Republican Party that he so desperately wanted to lead. Much of his extremism — from his racist “war on woke” to his repeated anti-LGBTQ actions to his anti-abortion efforts to his attacks on “progressive prosecutors” — has been echoed and used by others in the time since he began pushing himself into the presidential race.

When I wrote that “Ron DeSantis is not a cat” nearly 500 days ago, I had already written and known enough to write that he is “an anti-democratic, racist, anti-LGBTQ — I repeat, anti-LGBTQ — would-be authoritarian ….” Since September 2022, he’s only doubled, tripled, and quadrupled down on that. It didn’t work.

Of course, it largely didn’t work because Donald Trump exists and was running against him.

But, regardless of that, DeSantis is done for now. And, yes, I am celebrating that today. It is good when bad actors get the boot from the electorate. He would not have been better for the country than Trump — and in some ways, I think, he would have been worse — so my satisfaction at his defeat is unmitigated.

Unfortunately, he’s not likely done for good — if for no other reasons than that he’s young and his desire for power and control are not likely going away with his campaign. And, yes, he’ll be back in Florida, continuing to cause problems for people there that we will have to deal with — and that I will continue covering here.

For today, though, I’m happy to take a victory lap and just be glad that he is out of the 2024 presidential race.

Suffocation in the South

Alabama wants to try and kill Kenneth Eugene Smith again this week. After having failed to kill him by lethal injection in 2022, the state wants to suffocate him to death on Thursday.

The scheduled execution would be the first in the nation in 2024, and it raises questions about the state’s chosen method of execution and whether a state can try to kill a person twice.

When Alabama officials couldn’t figure out how to kill Smith by lethal injection in November 2022 — a repeated problem in the state — it led to a half-hearted “top-to-bottom review” of the state’s execution process.

The solution was, by and large, to give the state more time to kill people under its death warrants. And while the U.S. Supreme Court did not hear any case over the state’s changes, the court did, in effect, sign off on the changes — allowing executions to proceed under the post-review system.

Now, however, the Alabama Department of Corrections (ADOC) wants to go a step further. With death by lethal injection blocked under a court order, the state decided that it wanted to try to kill Smith again — and use a new method of execution to do so.

Yes, the state that failed to carry out multiple executions properly in 2022 — using a method used by many death-penalty states — has decided to address its problem by trying a novel method of execution.

As Smith’s lawyers lay out in a filing at the Supreme Court:

ADOC now intends to make a second attempt to execute Mr. Smith on January 25, 2024—this time by nitrogen hypoxia, which has “never been used to carry out an execution and ha[s] no track record of success[].”

As Scientific American detailed in a September 2022 article, there is little evidence to support any claims that the method would be less painful:

“The entire proposal for nitrogen gas was the product of a 14-page report made by a criminal justice professor,” says Corinna Barrett Lain, a law professor at the University of Richmond, who’s writing a book on lethal injection. “He’s not a doctor. He doesn’t have any medical training. He’s not a scientist. But he knew one of the legislators.”

Another professor highlighted the fact that, as Scientific American detailed, “‘nitrogen hypoxia’ is not a real medical term.” Joel Zivot, an associate professor of anesthesiology at Emory University, says it should simply be called “nitrogen gas execution.”

And yet, the lack of information about nitrogen gas execution is not the only issue in Smith’s case.

There is also the fact that Alabama already tried to execute him once.

The U.S. Supreme Court has only once ruled — in 1947 — on whether a second execution violates the U.S. Constitution. And, though it ruled 5-4 in Willie Francis’s case out of Louisiana that it did not, the fifth vote in the majority, from Justice Felix Frankfrurter, was based on his unwillingness to apply the Eighth Amendment’s prohibitions to the states at all. Even there, though, he suggested a possibility of a scenario when he would rule differently:

The fact that I reach this conclusion does not mean that a hypothetical situation, which assumes a series of abortive attempts at electrocution or even a single, cruelly willful attempt, would not raise different questions.

Smith’s lawyers argue that this was such a “cruelly willful attempt” justifying a different outcome than in Francis’s case.

Even the other four justices in the majority in the 1947 case described circumstances that can easily be said not to apply here to Smith — with his having been the third scheduled execution in 2022 that the state was unable to carry out. As Justice Stanley Reed wrote for the four, “The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution.”

Can one really say that the problems faced in Smith’s failed execution were “unforeseeable”?

As Justice Harold Burton wrote for the four dissenting justices in Francis’s case, “It was the statutory duty of the state officials to make sure that there was no failure.”

The case currently at the Supreme Court asks whether the second scheduled execution is unconstitutional. I would expect a second case, related to the method of execution, to come to the Supreme Court out of an ongoing federal appeal.

Smith’s execution, if it is not stopped, is scheduled for Thursday.